What Shall We Do With The Big Bad Banks?

We know the banks are big and have gotten bigger: the top five banks now constitute around 75 percent of the banking industry.

We also know that the banks have been bad, having almost brought down the global economy through undisciplined risk-taking in the melt-down of 2008.

But we are only now learning how persistently bad the banks are. In an insightful article by Edward Wyatt in the New York Times this week, we learn that over the last 15 years, some 19 large financial institutions have been found by the SEC to have repeatedly broken anti-fraud security laws that they agreed “never again to breach”. Thus:

Citigroup’s [C] main brokerage subsidiary, its predecessors or its parent company were considered by the SEC to have violated the law against purposeful or negligent fraud of customers under interstate commerce five times: in 2000, 2005, 2006, 2010 and 2011. In each instance, the firm undertook "never to breach the law again".

Bank of America [BAC], which now includes Merrill Lynch, was found by the SEC to have violated security laws some sixteen times and made similar pledges on each occasion.

JPMorganChase [JPM], which now includes Bear Stearns, was found by the SEC to have violated security laws some twelve times and made similar pledges on each occasion.

In each case, the offending bank has neither admitted nor denied liability, but has agreed to pay a fine, sometimes up to several hundred million dollars.

The types of fraud that the SEC has concluded exist are varied:

In one set of cases, professional traders were allowed to buy or sell a mutual fund at the previous day’s closing price, when it was clear the next day that the overall market or particular stocks were going to move either up or down sharply, guaranteeing a big short-term gain or avoiding a significant loss (2005, Bank of America among others).

In another case, supposedly independent research analysts bolstered its investment banking activities for several years. (2001, Bank of America)

In another case, billions of dollars of highly risky auction-rate securities were sold on the basis that they were as safe as money market funds, when the bank knew that they weren’t (Bank of America, 2007)

In another case, the bids in the municipal securities market were rigged for a number of years.

In another case, the firm was betting on the failure of securities which were being recommended to customers as valuable investments (Goldman Sachs, 2010)

Have the banks breached their undertakings?

The banks say that there is no basis for any assertion that they have violated the terms of any settlement. The grounds for saying this is however narrowly legalistic: the repeat offense was a different kind of fraud, perpetrated by a different division of the firm, possibly under a different subsection of the relevant statute.

Now suppose we heard of a car company where the brakes failed in one model; then steering mechanism failed in a different model, followed by a transmission failure in yet another model, and subsequently the wheels starting falling off in another model.

Would we say that these repeated instance of major safety problems were unrelated because they each involved a different part of the car produced by a different part of the company? Or would we say that repeated problems constituted pattern of safety violations amounting to a prima facie evidence of a lack of attention to safety?

Clearly, we would say that in that firm something was amiss in its safety procedures and we would demand that the company not just promise to try harder. We would insist that the firm take steps to resolve the generic problem.

Similarly in finance, it stretches the truth, says Jayne Barnard, professor at William & Mary Law School in Virginia to say that “a company’s multiple violations are just a freakish coincidence.” We have here prima facie evidence of repeated problems of security violations that amount to a generic institutional problem. The fact that it is not just one division, or one bank, or even several banks, but almost all the big banks that are involved, means that we are dealing with a generic industry-wide problem.

Higher penalties and contempt of court citations?

What is to be done about these big bad banks? One possibility would be to seek larger sanctions for instances where the SEC has found evidence of fraudulent conduct. .

In fact, Judge Jed S. Rakoff of the Federal District Court in Manhattan, an S.E.C. critic, is currently reviewing the recent Citigroup settlement. According to Wyatt, “Judge Rakoff has asked the agency what it does to ensure companies do not repeat the same offense, and whether it has ever brought contempt charges for chronic violators. The S.E.C. said in a court filing Monday that it had not brought any contempt charges against large financial firms in the last 10 years.”

However larger penalties may not be enough. Thus the largest penalty to date was the $550 million that Goldman Sachs agreed to pay in 2010 for betting on the failure of securities that were being recommended to customers as good investments.

Now for average people living in a normal world, $550 million sounds like a lot of money. But we are not here dealing with average people living in a normal world. We are dealing with a sector in which it is reported that the eight largest banks set aside some $130 billion for compensation in 2010, i.e. shortly after the same firms had brought themselves and the global economy to the brink of collapse and had to be rescued by a government bailout. So doubling or quadrupling penalties would still be only a drop in the ocean of the surpluses that the financial institutions and their executives are currently skimming off the top of the economy.

Higher penalties are not enough

While higher penalties are part of the answer, they are not enough. We are not dealing here with an isolated problem of a single individual, or a single department, or even a single firm that is responsible for the instances where SEC found fraud. We are dealing with an industry-wide culture that persistently leads to the same kind of problems, over and over again, and in the process, increasingly endangers the safety of the global economy.

It is not necessarily the case that the people involved in these cases are personally evil: it is rather that these are people who are embedded in an industry-wide culture that tends to cause fraud, by focusing solely on making money for themselves and their shareholders and paying scant attention to the customers they are supposedly working for.

Nothing significant is likely to change until that culture changes. The SEC and the courts can pursue the banks with court cases and penalties, but they will always be confronted with time-wasting legal defenses, as well as time lags between the invention of new ways to fleece customers and the discovery and proof of those methods. The only way to stop the big bad banks from persistently committing fraud is to institute a phase change of their organization culture. How would that be possible?